January 25, 2010

The New Law School Accreditation Debate

The ongoing battle over the standards for accreditation of
law schools by the American Bar Association Section on Legal Education and
Admissions to the Bar burst into general public view just over a week ago with a Chronicle
of Higher Education story. The story
reported on the budding debate concerning proposals that would require law
schools to identify a set of comprehensive learning objectives and then assess
whether their students actually achieved an appropriate level of proficiency in
those identified objectives.

Some background about the context of the debate might be
useful. Legal education, like all of American higher education, is a
regulated industry through the practice of accreditation. The Section on Legal Education is approved by
the U.S. Department of Education as the accrediting body for American law
schools. The Department requires
federally approved accrediting bodies to examine their standards for
accreditation regularly and comprehensively. The Section’s preliminary
proposals for stated learning goals and assessment methods come as part of that
comprehensive
review process. The proposals
respond to longstanding criticisms that the current standards are too oriented
toward inputs rather than outputs.Thus,
current rules look more at faculty size and library resources and less at the
institution’ssuccess in teaching
lawyering skills.

The drive for measurable outcomes is not unique to legal
education. It is part of a major trend generally in higher education
accreditation practice to make the rules more output rather than input
oriented. For example, the regional accreditors for colleges and universities
now have made assessment of learning outcomes a major component of their standards. Specialized accreditors, such as those for medicine, pharmacy and nursing also
require institutions to establish focused learning goals and assessment
rubrics.

So why are law schools resisting efforts to refocus accreditation
on learning outcomes?The objections to
the Section’s proposed standards come in a variety of forms. Opponents
argue that requiring formal assessment unduly increases the costs of law school
programs, interferes with institutional autonomy, and stifles innovation.
None of these objections are trivial and their ultimate force depends greatly
on the precise details of the standards the Section ultimately adopts.
The more profound issues with the proposals have not yet been made
explicit. They relate to internal law school politics and battles for the
soul of legal education. No law school would want to commit publicly to
having its students learn only a narrow range of skills. Both students
and employers would insist on a broadly based learning agenda.By identifying such an agenda, a law school
would necessarily be obligated to devote the resources to support such
learning. Thus, I believe a significant source of the angst about the
proposals is the well founded belief that, because the total resources
available to a law school are not likely to grow, the new standards would lead
to a major reallocation of institutional resources from faculty scholarship to skills
teaching. My assumption is supported by the interest group politics
exhibited to date. The major supporters of the proposal are the organized
groups representing clinicians and legal writing faculty.So stay tuned. What looks like a modest
debate about accreditation may lead to a deep discussion about our future.

TrackBack

Comments

You can follow this conversation by subscribing to the comment feed for this post.

Isn't the obvious output measure the Bar Exam? Most schools have curriculum oriented toward success on the bar. Plus, this would give bite to those who seek to close down schools that regularly graduate large numbers of students unable to pass the bar and practice law.

As a former middle school teacher, I can attest that general criticism of No Child Left Behind is misguided. NCLB is flawed, but it exposed major problems in American education by holding schools accountable for the first time. As a teacher who "taught to the test" and got my students some of the highest test scores in their school, I would bet everything I own that those students were, in the aggregate, far more prepared than their underperforming peers. Teaching to the test is only bad if the test is bad. So make the test good.

The moral of the story is that while outcome-based standards can be a great thing, accreditation organizations are playing with fire. It is vital that the standards they set be relevant and assessed well. Otherwise they can do more harm than good.

If we are going to measure law school success by output measures, I certainly hope that we can come up with something better than the bar exam. That is, unless we foresee a return to the 19th century solo lawyer practice that the law exam was set up for.

I think it provides a measure of the disconnect between modern practice and the legal academy that anyone could seriously suggest the bar exam as an appropriate output measure for a school that aims to prepare students for practice in today's - and tomorrow's - world.

I'm a legal writing faculty member, but if this proposal is an attempt to bring standardized testing into legal education, I think it's a terrible mistake. In my view, faith in assessment-driven education has dumbed down K-12 education considerably, and is likely to do the same for legal education.

In the name of raising test scores, my kids' school has practically transformed itself into an obedience school. Ask any kid: the "good" student is the one who is quiet and follows instructions. The overemphasis on obedience necessarily undermines any emphasis on inquiry and independent thought. Maybe the math scores will go up -- but at what cost?

I don't know of any legal writing teacher -- or any law professor -- who sees our mission as one of producing "right answers." We all know that merely passing the bar does not make one a competent lawyer. If raising scores on some bubble test becomes our primary goal, our mission will be immeasurably diminished. (Yes, not everything can be measured.)

If, by "assessment," this proposal means something other than standardized testing, then aren't we doing it already? Giving grades on exams and papers is far from a perfect assessment system, but at least it leaves the door open for a professor's effort to judge the less quantifiable aspects of learning. Any system that tries to remove the role of that type of judgment will not be meaningfully valid, no matter how reliable it might be.

The movement seems to be a “top-down,” bureaucratic initiative to solve a perceived problem at the local levels. I’d guess that the initiative will be clumsy and frustrating, even if the supporters have noble intentions.

Just as a thought experiment, what would happen if students were given far great say in shaping curriculum? What would happen if legal employers, judges, alums, deans, professors, and adjuncts gave advice to students about what kinds of courses they might take, and then the students’ aggregate choices drove the course loads?

I presume that at schools like Yale, Harvard, and Stanford, the curriculum wouldn’t change much. (But I could be wrong.) I also assume that in the night schools and “working class” schools, the curriculum wouldn’t change that much either. (Again, I could be wrong.) In a broad range of schools that are emulating the Y-H-S model, I assume that the curriculum would change substantially.

Even if no school is willing to carry out the experiment, wouldn’t it be interesting to use an internet poll to ask the students of some schools, “If you had a free hand to take whatever courses you wished over the next two semesters, without any limitations of enrollment limitations and regardless of what courses your school actually offers, what courses would you take?” Do law schools even have a good idea of what the response would be? That is, do law schools know what students want?